MONOGRAPH 40 volume 1

156 Transparent and consistent sentencing in the Land and Environment Court of NSW: orders for costs as an aspect of punishment Judicial Commission of NSW Supreme Court Land and Environment Court Local Court Various authorities Indictable matters Summary matters Summary matters Penalty notice Trial by judge (and jury, if required) ( Supreme Court Act 1970) Summary enforcement ( Land and Environment Court Act 1979, s 21, Class 5 matters) Summary enforcement ( Local Court Act 2007) By penalty notice Part 2: EPA Act N/A Tier 1, 2 and 3 offences For Tier 1 offences, s 125A(1) declares that the court attendance notice or application commencing the proceedings must allege that the aggravating factors applying to the commission of the offence were that: (a) the offence was committed intentionally; and, (b)(i) caused or was likely to cause significant harm to the environment, or (b)(ii) caused the death of or serious injury or illness to a person. The prosecution must also establish (to the criminal standard of proof) these factors: s 125A(1). Tier 3 offences by PN: (s 125C(3): a certificate-related offence ; or any other offence under s 125(1) for which a tier 3 maximum penalty applies). Maximum term of imprisonment N/A N/A N/A Maximum fine: N/A Tier 1 Corporation: $5 million (plus $50,000 each day offence continues) Individual: $1 million (plus $10,000 each day offence continues). Tier 2 Corporation: $2 million (plus $20,000 each day offence continues) Individual: $500,000 (plus $5,000 each day offence continues). Tier 3 Corporation: $1 million (plus $10,000 each day offence continues) Individual: $250,000 (plus $2,500 each day offence continues). Tier 1, 2 & 3 offences: $110,000 h By PN: As specified by the Environmental Planning and Assessment Regulation 2000 (Sch 5) or other relevant regulation. i Additional Orders N/A s 126(2A) incorporates Pt 8.3 of the POEO Act empowering the LEC to make certain orders for restoration and prevention of environmental damage, recovery of clean-up and investigation costs of enforcement authorities, forfeiture of monetary benefits, publication of offences and funding of environmental projects. (These Additional Orders can be made in addition to, or as an alternative to, imposing fines.) s 126(3) allows the making of “revegetation” orders. j s 126(2A) (and Pt 8.3 of the POEO Act ) restricts the Additional Orders that the Local Court can make (see note g above). s 126(3) “revegetation” orders permitted. j N/A h Under s 127(3) of the EPA Act , the maximum monetary penalty that the Local Court may impose in respect of an offence, notwithstanding any other provisions of the Act, is $110,000 (ie 1,000 penalty units at $110 per unit) or the maximum monetary penalty provided by the Act in respect of the offence, whichever is the lesser. i Increases to penalty notice amounts for certain planning offences were introduced under the Environmental Planning and Assessment Amendment (Inspections and Penalty Notices) Regulation 2009, Sch 1[16]. j EPA Act , s 126 (3): In addition to, or in substitution for any pecuniary penalty, the court may direct the planting of new trees or vegetation, and to provide security to ensure performance of such direction. Appendix B continued